14-ITB revised - Terms and Conditions - Construction Services.pdf

TOWN OF PALM BEACH

ITB Terms and Conditions – Construction

Town of Palm Beach - ITB Terms and Conditions – Construction

1) Acceptance – Submission of a Response to this Solicitation Package affirms acceptance of these Terms and Conditions.

Any questions related to these Terms and Conditions shall be directed to the Purchasing Division using the method indicated in these instructions. Any questions must be submitted and resolved prior to submission of a response.

Exceptions to these Instruction & General Conditions are not permitted.

2) Acceptance of Final Completion and Final Payment - When the Contractor believes Final Completion has been achieved, the Contractor shall submit a requisition for Final Payment. Subject to the Contractor having complied with all other requirements of the Contract Documents for Final Completion, within 30 days from the Engineer’s certification that Final Completion has been achieved, the Town shall pay to the Contractor, the remaining balance of the Contract Amount. Where Unit Prices were stated in the Schedule of Bid Items or Schedule of Values, the number of units is approximate and payment shall be made only for the number of units actually installed in completing the Work.

3) Acceptance/Rejection – The Town reserves the right to accept or to reject any or all bids and make the award to that bidder, who in the opinion of the Town will be in the best interest of and/or the most advantageous to the Town, in the Town’s sole and absolute discretion. Town also reserves the right to reject the bid of any vendor who has previously failed in the proper performance of an award or to deliver on time contracts of a similar nature or who is not in a position to perform properly under this award. Town reserves the right to waive any irregularities and technicalities and may, at its sole and absolute discretion, request a re-bid.

4) Addendum – The Purchasing Division may issue an Addendum to this solicitation that changes, adds to, or clarifies the terms, provisions, or requirements of the solicitation. The Supplier should not rely on any representation, statement, or explanation whether written or verbal, regardless of the source, other than those made in this solicitation document or in any addenda issued hereto. In the event of a conflict between the Solicitation Package and any addenda, the addenda shall prevail. It is the Suppliers responsibility to ensure receipt of all addenda and any accompanying documentation. The Supplier is required to acknowledge having reviewed the addendum within the solicitation system. Failure to acknowledge the addendum may cause the Submittal Package to be deemed non-responsive and not be considered for award.

5) Additional Information/Questions - Any communication or inquiries are to be made in writing to the attention of the Purchasing Representative identified in the Solicitation Package no later than SEVEN (7) CALENDAR DAYS prior to the solicitation due date. Oral answers given by anyone shall not be authoritative. Suppliers must submit their questions electronically through the online eProcurement system. The Town reserves the right to not answer questions received after the deadline for questions. Should a late question be deemed substantive by the Town the Town may issue an Addendum to answer the question and extend the due date and time for Solicitation Submittals.

6) Additional Quantities - For a period not exceeding twelve (12) months from the date of bid opening, the right is reserved to purchase additional equipment at the prices bid in this Invitation. If additional quantities are not acceptable, the bid sheet must be noted “Bid is for specified quantity only.”

7) Additional Terms – When submitting your response do not attach any forms, proposals or documents which may contain terms and conditions of the Supplier. Inclusion of additional terms and conditions which may be on your company's standard forms, shall result in your response being declared non-responsive and rejected, as these changes will be considered a counteroffer to the Town's solicitation. Should a Supplier wish to propose terms & conditions different than those provided by the Town they must be listed as an Exception and included in the place provided to list Exceptions.

8) Additional Quantities - For a period not exceeding twelve (12) months from the date of bid opening, the right is reserved to purchase additional material at the prices bid in this Invitation. If additional quantities are not acceptable, the bid sheet must be noted “Bid is for specified quantity only.”

9) Alternatives/Approved Equal/Deviations – Unless otherwise specified, the mention of the particular manufacturer’s brand name or number in the specifications does not imply that this particular product is the only one that will be considered for purchase. The reference is intended solely to designate the type or quality of merchandise that will be acceptable. Alternative offers will be considered and must include descriptive literature and/or specifications. Failure to provide descriptive literature and/or specifications with the alternative offer(s) may be cause for disqualification of the bid.

The Town, in its sole and absolute discretion, shall determine the acceptability of any alternative product or service and such determination shall be final and binding upon all bidders. When an item is marked “No Substitutions” alternates or equivalents will not be accepted. The bidder shall be responsible for reading carefully, and understanding completely, the requirements and specifications of the items bid upon. Any deviation from the specifications set forth herein must be clearly indicated. Unless a deviation is identified the Town has a right to detrimentally rely that the items offered are in strict compliance with these specifications, and the successful bidder will be held responsible. Therefore, deviations must be explained in detail on an attached sheet(s) and itemized by number. Any item(s) that do not meet the Town specifications upon delivery will not be accepted and if the item cannot be brought up to specifications in a reasonable time (reasonable time as determined by Town), the bidder will be required to compensate the Town for any expenses incurred to acquire the specified items.

10) Applicable Laws – Suppliers are advised all Town Agreements and documentation applicable to the Solicitation

Package and Supplier’s Submittal Package are subject to all legal requirements provided for in applicable Town Ordinances, State Statutes, and Federal Regulations. Uniform Commercial Code, Chapters 671-679 et seq, Fla. Stat.

shall control as the basis for contractual obligations between the Supplier and the Town for any terms and conditions not specifically set forth within this Solicitation Package and/ or resulting Agreement.

11) As Specified - A purchase order will be issued to the successful bidder with the understanding that all services rendered must meet the specifications herein.

12) Availability of Funds – The obligations of the Town under this award are subject to and conditioned upon the availability of funds lawfully appropriated by the Town Council.

13) Availability of the Platform – All responses to this solicitation must be submitted electronically through the eProcurement Platform. Should there be any technical issues with the Platform (not user/Supplier issues) that prevents any Supplier from submitting a response within the two (2) hours immediately before the due time, the solicitation Platform provider (Bonfire) and affect all participating Suppliers. The Town shall verify the technical issue or unavailability of the Platform with Bonfire, the system provider. Technical issues localized to a single supplier will not be considered cause for an extension.

14) Award – Award may be made to the Supplier which offers the best value to the Town. The Town reserves the right to reject any and all offers, to waive non-material irregularities or technicalities and to re-advertise for all or any part of this solicitation as deemed in its best interest. The Town shall be the sole judge of its best interest. Award will be made to the lowest responsive and responsible bidder. Bids shall remain open for 120 days.. If a contract is awarded, the Town will provide the successful bidder a Notice of Award within 120 days after the day of the Bid Opening.

The Town of Palm Beach reserves the right to award on an “All-or-None” basis to one bidder or to award on a “Lot-by-Lot” or “Item-by-Item” basis whenever it is in the best interest of and/or most advantageous to the Town of Palm Beach.

15) Basis for Bidding – The total bid price shall be based on quantities, unit prices and/or lump sum(s) according to the

Pricing Sheet(s) provided. Any quantities shown in the Pricing Sheet(s) are estimates for the purpose of arriving at a total price for comparison of Solicitation Responses. Prices submitted by Suppliers will be firm for ONE HUNDRED TWENTY (120) CALENDAR DAYS after the solicitation due date, unless stated differently elsewhere in the Solicitation Package.

16) Bankruptcy/Insolvency - At the time of submittal of bid, vendor/firm shall not be in the process of or engaged in any type of proceedings in insolvency or bankruptcy, either voluntary or involuntary, or receivership proceedings. If the vendor/firm is awarded a contract for six (6) months or longer, and files for bankruptcy, insolvency or receivership, the Town may, at its option, terminate and cancel said contract, in which event all rights hereunder shall immediately cease and terminate.

17) Barricades, Temporary Scaffolds, Staging, and Safety Devices - Contractor shall provide, erect, maintain and remove as required all barricades, traffic control signs, cones, scaffolding, sidewalk overhead pedestrian protection platforms, guards, railings, etc., as required by local/state authorities, codes or laws for the protection of workmen and the public.

18) Best Management Practices - The Contractor is required to submit a Best Management Practice Plan for approval by the Engineer and the Town prior to project commencement.

19) Bid Bonds - Requirements listed in the Solicitation Package in Bonfire.

20) Bid Evaluation - Bids received shall be evaluated by the Town for compliance with Solicitation Package requirements. The Town reserves the right to accept or to reject any or all bids and to make the award to that bidder, who in the sole and absolute discretion of the Town will be in the best interest of and/or the most advantageous to the Town. The Town also reserves the right to reject the bid of any vendor who has previously failed to properly perform, does not demonstrate the required minimum resources and/or experience described, or has failed to timely deliver on contracts of a similar nature. The Town reserves the right to inspect all facilities of bidders in order to make a determination as to the foregoing. The Town of Palm Beach reserves the right to waive any irregularities and technicalities and may, at its discretion, request a re-bid.

21) Bid Form - All bid proposals must be submitted on our standard Invitation to Bid form. Bid proposals on vendor quotation forms will not be accepted.

22) Bid Tabulation - Bidders desiring a copy of the bid tabulation of the Invitation to Bid may obtain them by going to the Town’s website at www.townofpalmbeach.com, (click “Doing Business” click “Sealed Bids/Requests for Proposals” and follow the instructions).

23) Binding Offer - The submission of a Submittal Package to this Solicitation Package will constitute an incontrovertible representation by Supplier that Supplier has read, understands and is in compliance with every requirement of this Solicitation Package, that without exception the Submittal Package is premised upon performing the services and/or furnishing the commodities and materials and such means, methods, techniques, sequences or procedures as may be indicated in or required by the Solicitation Package and terms and conditions provided. The Supplier through their Submittal Package certifies the Solicitation Package provided is sufficient in scope and detail to indicate understanding of all requirements stated. Supplier Submittal Package is submitted with full knowledge and understanding of the requirements and time constraints stated.

24) Binding on Successors and Assigns - This Contract shall inure to and be binding on the heirs, representatives, successors and assigns of the Town and the Contractor, although Contractor may not assign this Contract or any right hereunder (except to the extent of any payments earned for purposes of collateral assignment to lenders) without the prior written consent of the Town. Contractor acknowledges that the Town has entered into this Agreement with the Contractor after an extensive competitive bidding process and evaluation of Contractor's particular qualifications and skills to perform the Work. Therefore, Contractor agrees that the Town may withhold the consent to assignment referred to in this subsection for any reason the Town deems appropriate in its sole and unfettered discretion.

25) Cancellation of Solicitation – The Town reserves the right to cancel, in whole or in part, any solicitation when it is in the best interest of the Town. Availability of all information related to a cancelled solicitation is subject to Chapter 119, Florida Statutes.

26) Certification of Supplier - Submitting a Submittal Package in response to this Solicitation Package, in addition to electronically accepting receipt of the Solicitation Package, certifies the Supplier's Authorized Agent has read, understands, and accepts responsibility for the contents of this Solicitation Package and Supplier's Submittal Package and agrees to comply with all requirements prescribed in the Solicitation Package.

27) Change Orders - Changes in the Work can only be authorized by Written Change Order or written Construction

Directives. Time Extensions can only be authorized by Written Change Order, produced by Town ERP financial system.

http://www.townofpalmbeach.com/

All Change Orders must be in writing and signed by the Town, Engineer, and Contractor. The Change Order shall describe the changes in the Work, the amount of the adjustment, in the Contract Amount, and the adjustment in the time for the Work to achieve Completion and/or Final Completion, as applicable. Contractor shall make written request for a Change Order to the Engineer and the Town within _2_ business days of being informed by the Town or the Engineer of a proposed change in the Work, or within two (2) business days of any occurrence which in the Contractor's opinion represents a change in the Work or justifies the Contractor obtaining an Extension of Time for Completion and/or Final Completion. Failure to timely submit a written request for Change Order shall constitute the Contractor’s waiver of a claim therefore and good cause for the Engineer’s denial of approval of the Change Order request. The Contractor's request for a Change Order shall be in writing and shall be submitted with backup information addressing pricing, staffing, and impact on the Work Schedule with sufficient detail to support the Contractor's request. Additionally, the Engineer may require the Contractor to provide any supplemental information deemed reasonably necessary for the Engineer to evaluate the requested Change Order.

The Engineer and the Town shall acknowledge receipt of the Contractor's request for Change Order within _5_ business days of receipt. If a written and duly executed Change Order has not been issued, the Contractor is not authorized to and shall not proceed with the work described in the Change Order unless the Contractor has recovered a written Construction Directive as described below. The Contractor shall not cease performing the Work on the basis that Change Orders are under review or on the basis that Change Orders have been denied or otherwise issued for amounts or in a manner not satisfactory to the Contractor, but shall use Contractor's best efforts to complete the Work and to conform to existing Work Schedules while resorting, if necessary and appropriate, to the remedies provided in this Contract or at law.

28) Changing of Forms - Town forms may not be altered or amended by the Contractor. The submission of altered or amended Town forms by a Contractor in response to this solicitation shall constitute sufficient grounds to disqualify the Contractor for award.

29) Chapter 287 Requirements – The Contractor agrees that this Contract incorporates the requirements of §287.058, Fla. Stat., for contract documents and that the Town reserves and has the unilateral right to cancel this contract for refusal by Contractor to allow public access to all documents, papers, letters, or other material made or received by the Contractor in conjunction with this Contract, unless the records are exempt from s.24(a) of Art. 1 of the State Constitution and §119.07(1), Fla. Stat. Contractor also agrees to comply with § 287.0585, Fla Stat., with regard to payment of subcontractors and suppliers and acknowledges the statutory sanctions in the event of non-compliance.

30) Character of Workmen and Equipment - All equipment and workmen provided by the Contractor for work hereunder, shall be the best available for the kind of work being performed. Any person or entity that subcontracts with or is employed by the Contractor whom the Engineer or his designee may deem temporarily or permanently incapable or unfit to perform the work, shall be removed from the job and such person shall not again participate with the Work or be allowed on the work site. Every such determination by the Engineer shall be provided in writing to the Contractor.

31) Clarifications - The Purchasing Division will receive written requests for clarification concerning the meaning or interpretations of the Solicitation until ten (10) days prior to the submittal deadline. Inquiries must be directed to the Town’s Purchasing Division, through the E-Bidding Platform, Bonfire. Town personnel are authorized only to direct the attention of prospective Bidders to various portions of the solicitation so that they may read and interpret such for themselves. No employee of the Town is authorized to interpret any portion of this solicitation or provide information regarding the requirements of the solicitation beyond what is contained in the written solicitation document.

During the solicitation process, related contact with Town Staff by a Contractor or its agent, other than as part of the evaluation process or for clarification purposes, will be grounds for automatic disqualification of that Applicant Firm.

The Applicant Firm may only contact the Purchasing Division for the clarification of the selection process and regarding any aspects of the projects to be used for the presentation as set forth above.

32) Code of Ethics - If any Bidder violates or is a party to a violation of the code of ethics of the Town of Palm Beach, Palm Beach County or the State of Florida with respect to this proposal, such Bidder may be disqualified from performing the work described in this proposal or from furnishing the goods or services for which the proposal is submitted and may be further disqualified from submitting any future proposals for work, goods or services for the

Town of Palm Beach. The link for additional information regarding the Palm Beach County Commission on Ethics may be found at: http://www.palmbeachcountyethics.com/ordinances-codes.htm.

33) Codes of Regulations - The vendor must strictly comply with all Federal, State, and local building and safety codes.

34) Collusion Among Suppliers - Where two (2) or more related parties, as defined herein, each submit a response for the same Solicitation, such responses shall be presumed to be collusive. The foregoing presumption may be rebutted by the presentation of evidence as to the extent of ownership, control and management of such related parties in preparation of such responses. Related parties shall mean an interested party or the principals thereof which have a direct or indirect ownership interest in another interested party for the same contract or in which a parent company or the principals thereof of one interested party have a direct or indirect ownership interest in another interested party for the same contract. Furthermore, any prior understanding, agreement, or connection between two (2) or more corporations, firms, or persons submitting a response for the same materials, supplies, services, or equipment shall also be presumed to be collusive. The relationship of manufacturer or their representative(s) providing pricing to distributors while each party submits a response for the same materials, supplies, services, or equipment shall be presumed to be collusive. Responses found to be collusive shall be rejected. Respondents which have been found to have engaged in collusion may be considered non-responsible, and may be suspended or debarred, and any contract resulting from collusive actions may be terminated for default.

35) Competency of Bidders - Pre-award inspection of the bidder’s facility may be made prior to award of Contract.

Bids will be considered only from firms which are regularly engaged in the business of providing services as described in this Bid and who can provide evidence that they have established a satisfactory record of performance and a sufficient delivery fleet to insure satisfactory execution of the services under the terms and conditions herein stated. The term “equipment and organization” as used herein shall be construed to mean a fully equipped and well-established company in line with the best business practices in the industry and as determined by the proper authorities of the Town.

36) Compliance with Occupational Safety and Health - Bidder certifies that all material, equipment, etc., contained in his/her bid meets all O.S.H.A. requirements. Bidder further certifies that, if he/she is the successful bidder, and the material, equipment, etc., delivered is subsequently found to be deficient in any O.S.H.A requirement in effect on date of delivery, all costs necessary to bring the material, equipment, etc., into compliance with the aforementioned requirements shall be borne by the bidder.

37) Cone of Silence – The Cone of Silence is a prohibition on any communication, except for written correspondence, regarding a particular request for proposal, request for qualification, bid or any other competitive solicitation between:

a. Any person or person’s representative seeking an award from such competitive solicitation; and

b. Any County commissioner or commissioner’s staff, any member of a local governing body or the member’s staff, a mayor or chief executive officer that is not a member of a local governing body or the mayor or chief executive officer’s staff, or any employee authorized to act on behalf of the commission or local governing body to award a particular contract.

For the purposes of this section, a person’s representative shall include but not be limited to the person’s employee, partner, officer, director, consultant, lobbyist, or any actual or potential subcontractor or consultant of the person.

The cone of silence shall be in effect as of the issuance of the Invitation To Bid,. The cone of silence applies to any person or person’s representative who responds to a particular request for proposal, request for qualification, bid or any other competitive solicitation, and shall remain in effect until such response is either rejected by the Town or withdrawn by the person or person’s representative. Each request for proposal, request for qualification, bid or any other competitive solicitation shall provide notice of cone of silence requirements and refer to this article.

The provisions of this article shall not apply to oral communications at any public proceeding, including pre-bid conferences, oral presentations before selection committees, and contract negotiations presentations made to the town council, and protest hearings. Further, the cone of silence shall not apply to contract negotiations between any employee and the intended awardee, any dispute resolution process following the filing of a protest between http://www.palmbeachcountyethics.com/ordinances-codes.htm the person filing the protest and any employee, or any written correspondence at any time with any employee, town council member, mayor, advisory board member, or selection committee member, unless specifically prohibited by the applicable competitive solicitation process.

The cone of silence shall terminate at the time the town council or town department authorized to act on behalf of the town council, awards or approves a contract, rejects all bids or responses, or otherwise takes action which ends the solicitation process. For further information refer to http://www.palmbeachcountyethics.com/ordinances-codes.htm - Palm Beach County Registration Ordinance – Effective April 2, 2012.

38) Conflict of Interest - The award of this solicitation is subject to Chapter 112, Florida Statutes. All

Respondents/Contractors must disclose with their response the name of any officer, director, or agent who is also an employee of the Town of Palm Beach. Further, all respondents must disclose the name of any Town of Palm Beach employee who owns, directly or indirectly, an interest of five (5) percent or more of the Suppliers company or any of its branches.

39) Conflicts within the Solicitation – Where there appears to be a conflict between information provided in the

Solicitation Package the order of precedence shall be the last addendum issued, the Pricing Sheet(s), the Scope of Work/Specifications, the Special Terms & Conditions, the Supplemental Terms & Conditions and then the General Terms and Conditions.

40) Construction Directives - The Town and Contractor recognize there may be occasions where the Town and

Engineer direct a change in the Work that may or may not justify the change in the Contract Amount or an extension or reduction of the Contract Time, but the change needs to be implemented prior to any adjustment to the Contract Amount or Contract Time having been determined or agreed upon by the parties. In such event, a written Construction Directive shall be prepared and signed by the Engineer and delivered to the Contractor. Upon receipt of the Construction Directive the Contractor shall proceed with the change in the Work without amending this Contract, pending the determination of the amount of any adjustment to the Contract Amount or Contract Time. The Contractor shall submit documentation to the Town and the Engineer in accordance with the standards set forth herein “Determining Adjustments To Contract Amount for Change Orders” as the Contractor’s justification for an either an adjustment in the Contract Time or the Contract Amount, or both that Contractor contends is/are necessary due to the Construction Directive. The parties shall endeavor to determine reasonable compensation for the Construction Directive work and to reach agreement on whether changes to the Contract Time are appropriate. If such agreement is reached, the provisions of the Construction Directives and the resulting agreement shall be incorporated into a Change Order and be signed by the Town, Contractor, and Engineer. If the Contractor does not agree with the Contract Amount and/or any Contract Time adjustments as proposed by the Engineer and to which the Town has agreed, the Contract Amount and Contract Time shall be adjusted in the manner proposed by the Engineer and approved by the Town without prejudice to the Contractor pursuing any other remedy available to it under this Contract or at law.

41) Contents of the Solicitation Package and Suppliers Responsibilities – It is the responsibility of the Supplier to become thoroughly familiar with the requirements, terms, and conditions of this solicitation. Pleas of ignorance of these matters by the Supplier will not be accepted as a basis for varying the requirements of the Solicitation Package or any resulting Contract.

42) Contingent Fees Prohibited - The Supplier warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Supplier, to solicit or secure any resulting Contract and that he has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Supplier any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. In the event of a breach of this provision, the Town will have the right to terminate any resulting Contract without further liability and at its discretion, deduct from the contract price, or otherwise recover, the full amount of any such fee, commission, percentage, gift or consideration paid in breach of any resulting Contract.

43) Contractor Responsibility - The bidder shall be responsible for the protection of property, in the areas in the vicinity of the project; and for the protection of his own equipment, supplies, materials and work, against any damage resulting from the elements (such as flooding, rainstorms, wind damage, or other acts of God) or vandalism.

44) Contractor Submission of Schedule of Values – Within ten (10) days of being advised of the Award, Contractor shall provide a Schedule of Values allocating the Contract Amount among the various components of the Work to the Engineer for approval. The form of the Schedule of Values shall contain such line items making up the components of the Work and allocating to the line items percentages of the Contract Amount as may be satisfactory to the Engineer. The Schedule of Values shall also delineate what portions of the Work will be performed by Contractor and which by subcontractors. The Contractor shall provide backup information supporting the designation of line items and allocations of the Contract Amount contained in the Schedule of Values. Upon the issuance of a written Change Order executed by each of the requisite parties, the work described in the Change Order shall be added to the Schedule of Values as a separate line item and payment therefore shall be made in future Progress Payments based on the percentage of completion of the Change Order work described as of the date of each Application.

45) Contractual Agreement - This ITB shall be included and incorporated in the final award. The order of contractual precedence will be the Contract or Agreement document, original Terms and Conditions, and Bidder response.

Any and all legal action necessary to enforce the award will be held in Palm Beach County and the contractual obligations will be interpreted according to the laws of the State of Florida. Any additional contract or agreement terms requested for consideration by the Bidder must be attached and enclosed as part of the proposal.

46) Contract Term - Requirements listed in the Solicitation Package in the Towns eProcurement platform.

47) Copeland “Anti-Kickback Act” - The Supplier must comply with the Copeland "Anti-Kickback" Act, 18 USC 874 as supplemented in Department of Labor regulations, 29 CFR Part 3, prohibiting employers from inducing any person employed to give up any part of the compensation to which he or she is otherwise entitled.

48) Cost of Preparing Response - All costs incurred by the Supplier for preparation and submittal of a response to the solicitation will be the sole responsibility of the Supplier. The Town of Palm Beach shall not reimburse any Supplier for any such costs.

49) Damage to Persons or Property - The Contractor shall at all times guard against damage or loss to the property of the Town of Palm Beach, other contractors, and other parties including, without limitation, Town residents and the general public, and shall be responsible for repairing, replacing or otherwise satisfying in full all claims for loss or damage that was caused by the Contractor during the contract performance (“Contractor Damage Claims”). The Contractor Damage Claims shall be settled directly by the Contractor within 14 business days of receipt of the claim or shall be submitted to the Contractor’s insurance carrier(s) within five (5) business days from receipt of claim being filed with the Contractor and in the event, the insurance carrier determines liability on the Contractor, the claim for such damage shall be paid within thirty (30) days of such determination by the contractor’s insurance carrier.

Claims status shall be an item which is placed on every agenda for the periodic progress meetings between the Project Engineer/Project Manager and the Contractor. In addition, Contractor shall provide the Town with a written status report for any new or outstanding Contractor Damage Claims submitted with every pay request. The name, title, phone number, e-mail address and mailing address of the Contractor’s representative responsible for handling Contractor Damage Claims shall also be provided with every pay request. Should there be no new or outstanding Contractor Damage Claims the contractor shall state the same in the required written status report.

The Town may withhold payment, or make such deductions as the Town deems necessary or appropriate, to insure prompt reimbursement, repair or replacement of loss or damage to persons or property in the settlement of Contractor Damage Claims resulting from the actions of the Contractor, the Contractor’s subcontractors, sub subcontractors, from material men and suppliers of any tier and their employees and agents.

The responsibility for all damages to person or property arising out of or on account of the Work done under this Contract shall rest with the Contractor and the Contractor shall indemnify the Town and others as set forth in

Indemnification provisions herein. The foregoing provisions of this paragraph are for protection of the Town are not intended to, and shall not inure to the benefit of any actual or alleged claimant or any other party. Neither shall these provisions obligate the Town to repair, replace, or make reimbursement to any claimant for any alleged damage or to adjust, settle or pay any Contract Damage Claims or other claims that are the obligation of the Contractor under this Contract.

50) Debris - Contractor shall be responsible for the prompt removal of all debris that is a result of performance of the

Work and the legal disposal of same.

51) Definition of Terms -

a. Addendum: An official change or revision to a Solicitation Package issued in writing by the Purchasing Division. An Addendum will be published through the Platform.

b. Bid, Offer, or Response: Shall refer to any submission in response to this Solicitation that if accepted would bind the Supplier to perform the resultant Contract.

c. Commodity: A marketable item produced to fulfill a need or want, and references both goods and services. More specifically the product or service requested in this solicitation.

d. Contract: The Agreement to provide the Commodity(s) set forth in this solicitation.

i. Purchase of Goods - The contract will be comprised of the solicitation document signed by the vendor with any addenda and other attachments specifically incorporated into the agreement, and a Town purchase order.

ii. Performance of Services – The contract will be comprised of the Agreement between the Town and the vendor, the solicitation document, any addenda, and other attachments incorporated into the agreement. A notice to proceed may also be included.

e. Contractor: The vendor to whom Contract award has been made. Used when conditions or responsibilities apply only to the awarded Contractor.

f. Town: Shall refer to Town of Palm Beach, Florida.

g. Formal Award: Is defined as the Town Council’s approval of the solicitation award, or lacking

Town Council approval, issuance of a Notice of Award document or the issuance of a Purchase Order to the awarded Contractor.

h. In Writing - Writing is any mode of representing or reproducing words in a visible form. To include electronic and technological methods for the representation of words.

i. Invitation to Bid (ITB): Shall mean the Online Solicitation, including any Addenda, published through the Town’s Platform used to communicate Town requirements to prospective Suppliers and to solicit Responses from them.

j. Language: The Town has established for purposes of this solicitation that the words “shall”, “must”, or “will” are equivalent in this solicitation and indicate a mandatory requirement or condition, the material deviation from which shall not be waived by the Town. A deviation is material if, in the Town’s sole and absolute discretion, the deficient response is not in substantial accord with this ITB’s mandatory requirements. The words “should” or “may” are equivalent in this solicitation and indicate very desirable conditions or requirements, but are permissive in nature. The masculine pronoun shall include the feminine and neuter and the singular shall include the plural.

k. Owner: Shall mean the Town of Palm Beach, Florida.

l. Platform: The Town’s Internet based online solicitation system (e-Bid/RFx) is identified as and located at https://townofpalmbeach.bonfirehub.com/portal/?tab=openOpportunities (Provider). The Platform is utilized by the Town and the Suppliers to: 1) Allow Suppliers to register and manage their company records, 2) Town posts and issues Town Solicitation Packages for Suppliers from inception to award of a Solicitation, 3) Allows Suppliers to submit a response online, electronically, through the Platform, 4) Allows Suppliers to view all public record documents related to an Online Solicitation. May also be referred to as e-Bid/RFx System, or System.

m. Pricing Sheet: The area within the Platform that Suppliers will provide their pricing response for the Solicitation. Also known as Schedule of Bid Items.

n. Purchase Order: The Town’s document to a Supplier formalizing all the terms and conditions https://townofpalmbeach.bonfirehub.com/portal/?tab=openOpportunities of a proposed transaction, such as a description of the requested items, cost of items being purchased, delivery schedule, terms of payment, and transportation. For formal solicitations the Purchase Order will incorporate the Terms & Conditions of the solicitation.

o. Responsible: Refers to a Supplier that has the capacity and capability to perform the work required under a Solicitation and is otherwise eligible for award.

p. Responsive: Refers to a Suppliers Submittal Package or response when the Submittal Package conforms to the instructions and format specified in the Solicitation Package.

q. Supplier: A general reference to any entity responding to this solicitation and must be the party entering into the Contract with the Town; also includes Supplier, contractor, company, respondent, vendor, etc.

r. System: See Platform.

s. Solicitation: See Solicitation Package.

t. Solicitation Package: Will mean the group or collection of documentation that constitutes the information detailing the solicitation requirements that requests responses, bids, offers, or submittals from eligible Suppliers. The information may be in the form of electronic documents, files and information contained within data fields in the Platform. Solicitations may be in the form of a Request for Quote, Invitation to Bid, Request for Proposal, Request for Qualifications, or Invitation to Negotiate. Also referred to as a Solicitation.

u. Submittal Package: The Submittal Package is defined as a Suppliers submittal or response to all Solicitation Package Requirements as set forth in the Platform. All areas requiring a response must be completed by the Supplier, failure to do so may result in the Suppliers Submittal Package being deemed non-responsive and not considered for award. Also known as Solicitation Response, Bid, Offer, or Response.

52) Delivery - The awarded Contractor shall deliver parts ordered that are in stock within 24 hours (next business day) and deliver special order parts (not in stock) within 72 hours (3 business days). The awarded Contractor shall be able to provide free emergency delivery, as necessary, in less than one (1) hour during normal operating hours. The Town of Palm Beach requires that there be no minimum requirements on any order. It is estimated that about 10% of the parts ordered will require emergency (1 hour) or weekend delivery.

Deliveries shall be made Monday through Friday between the hours of 7:30 A.M. and 4:00 P.M. In addition, the awarded Contractor shall provide free weekend deliveries if so required. The Contractor shall promptly advise the Town of Palm Beach of any delay or anticipated delay in delivery or performance. The awarded Contractor shall furnish an itemized delivery ticket for every delivery made to the Town. The ticket shall include the date and purchase order number.

NOTE: If the awarded Contractor is unable to deliver an order within the required time frames, the Town of Palm Beach reserves the right to purchase that order from an alternate supplier. Continual failure to deliver product(s) within the required timeframe(s) shall result in termination of the contract.

53) Deletion or Modification of Services - Extreme care shall be taken to safeguard all existing facilities, sidewalks, curbs, landscaping, site amenities, irrigation systems, vehicles, etc. on or around the job site. Damage to public and/or private property shall be the responsibility of the Contractor and shall be repaired and/or replaced at no additional cost to the Town.

The successful bidder shall at all times, guard against damage or loss to the property of the Town of Palm Beach and/or private property within the Town. Contractor shall be held responsible for replacing or repairing any such loss or damage. The Town of Palm Beach may withhold payment or make such deductions as deemed necessary to insure reimbursement or replacement for loss or damage to property through negligence of the successful bidder or his/her agents.

54) Designation of Emergency Contact Person - Before commencing the Work, the Contractor and each subcontractor shall provide the Engineer with the name of an Emergency Contact Person along with an email address and cellular phone number, or other telephone number, through which that Emergency Contact Person can be reached during non-working hours, including without limitation weekends and holidays.

55) Determining Adjustments to Contract Amount for Change Orders - All adjustments in the Contract Amount by reason of a Change Order pursuant to any provisions of this Contract shall be determined either by agreement of the Contractor and the Town with the approval of the Engineer, or in the event an agreement cannot be reached, as provided below.

In the event a change in the Work relates to work bid in Unit Prices by the Contractor in its bid, it shall be presumed that any related addition or deletion to the Contract Amount shall be based on the same Unit Prices as used in the Contractor's bid and that those Unit Prices also include the Contractor’s overhead and profit. If either party believes that the use of those Unit Prices would precipitate an inequitable result, then that party shall have the burden of demonstrating that a substantial change in the cost of the related supplies, materials, equipment, tradesmen, or laborers has materially increased or decreased since the bid.

In the absence of applicability of Unit Prices used in the bid, or agreement of the parties, any adjustment in the Contract Amount for a Change Order shall take into account the reasonable costs and savings related to the change in the Work, including the Contractor’s reasonable overhead and profit. The components that the Contractor and the Town agree shall be used to determine the Contractor’s cost of the Work are the following:

a) The Contractor’s payroll costs for employees who will be performingthe work described in the

Change Order. Payroll costs shall include payroll taxes, normal and customary fringe benefits, and cost of worker’s compensation insurance. Payroll costs or other compensation paid to Contractor’s administrative or executive officers, home office employees and professionals may not be included.

b) The cost of the building supplies, materials and equipment incorporated into or consumed in completing the work described in the Change Order, any related transportation and delivery costs, and the allocated rental costs of any equipment rented by the Contractor to perform the work described in the Change Order.

c) Permit fees, sales or other similar taxes, and any increased costs of bond premiums or insurance premiums directly attributable to the work described in the Change Order.

d) Additional costs of field supervision and field office personnel, but only to the extent attributable to the change in the work described in the Change Order.

e) Payments made by the Contractor to subcontractors for the work of subcontractors encompassed in the Change Order. In the event the Contractor selected the subcontractor by other than competitive bidding, the Contractor must provide the Engineer with supporting documentation showing that the amount paid to subcontractor was reasonable and consistent with then applicable market conditions for the same or substantially similar work.

f) Contractor’s overhead and profit not to exceed an aggregate of _10_ percent on items A through D above.

g) Contractor’s overhead and profit on portions of the Change Order work performed by subcontractors (item F above) for which the aggregate percentage of overhead and profit shall be limited to _5_ percent.

h) All of the provisions hereto relating to Change Orders and Construction Directives are subject and subordinate to the provisions of this Contract regarding No Damages For Delay. No application for Change Order shall include compensation, reimbursement or other amounts excluded in the No Damage For Delay provisions of this Contract.

56) Differing Site Conditions –

a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the

Engineer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract Documents, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents.

b) The Engineer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially differ, such that an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment of the contract price shall be made by written Change Order.

c) No request by the Contractor for a Change Order under this clause shall be allowed, unless the Contractor has given the written notice required, provided that the time prescribed in (27) above for giving written notice may be extended by the Town.

d) No request by the Contractor for a Change Order for differing site conditions shall be allowed if made after Final Payment under this contract.

57) Digital Record Drawing/As-Built Drawing Submittal –

a) Overview –

1. Prior to acceptance of the utility portions of the project by Town, the Contractor must submit a digital copy of the record drawings in CAD or GIS format. As a minimum, these files shall meet the criteria as described in this document. Deviations from these guidelines will be allowed only by written permission from the Town.

2. Initial CAD / GIS submittals must be delivered to the Town on a CD with the paper record drawings. E-mail and/or ftp submittals are not acceptable for initial submittals.

E-mail and/or ftp are only to be used to resubmit if and only if corrections to the GIS data are requested by Town. Use of E-mail and/or ftp to re-submit GIS data must be approved by the Town in advance.

b) Coordinate System - The term ‘coordinate’ or ‘coordinates’ mean northing and easting values in the Florida

East Zone / North American Datum, NAD 83-90 High Accuracy Reference Network, HARN Feet State Plane Coordinate System. Coordinates shall be accurate to the nearest tenth of a foot and shown to a precision of the nearest tenth of a foot. All elevations will be based on NGVD29 (National Geodetic Vertical Datum).

c) Minimum As-Built and Record Drawing Contents - All information on the drawings must be clear and understandable to the Town. The record drawings will show at a minimum for all systems:

1. Show existing systems and where new infrastructure ties in.

2. Show new systems in their entirety including pipes, lines, conduits, vertical and horizontal deflections, connections, valves, risers, poles, casings, pads, manholes, boxes, any and all appurtenances and specialty features.

3. Either label or clearly show in a legend each feature as described above. If the Town has an identification convention for features, the features will be labeled with the same identification as used by Town.

4. Show all abandoned-in-place facilities including the extent and method of abandonment.

5. Show elevations including all top of pipe for pressure pipes and conduits at deflection points and 50ft intervals, pipe inverts at connections to structures, separations at pipe crossings, manhole lids and rims, top slabs and pads, bottom of structures, control set points and any other necessity elevations.

6. Each pipe will be marked with its size and type of material. Gravity pipes will also be marked with their length and slope. Each fitting will be marked with its size and type (i.e.

45 degree bend or 6X8 Tee). Each fitting will be marked with its material if the material is…